98 Neb. 27 | Neb. | 1915
The attorneys for the parties in this case have made good use of rule 14 (94 Neb. XIII) of this court. By so doing they have saved themselves and the court much labor and their clients much expense. It appears that there were pending in the district court for Dodge county four several cases, all involving the same legal quéstions. These questions were determined by the district court in each of the four cases, and thereupon the counsel representing the respective parties entered into a stipulation under rule 14, which provides for a case stated. The case stated begins with these words: “In the District and Supreme Courts of the state of Nebraska. First Case: Nye-Schneider-Fowler Co., plaintiff, Appellant and Appellee, v. Bridges, Hoye & Co., Defendant and Appellee; Lion Bonding & Surety Co., Defendant, Appellant and Appellee.” Then follows the title of each of the other three cases, and the statement proceeds as follows: “Stipulation for Consolidation, Joint Appeal and ‘Case Stated’ under Supreme Court Rule No. 14. Come now the parties to the four actions above mentioned, and both plaintiffs and the surety company, defendant, intending to appeal to the supreme court, do hereby stipulate as follows: 1. The first and second cases were commenced in the district court for Dodge county, and the third and fourth cases were commenced in a justice court, and by agreement stipulated to said district court for trial. Issues were properly joined in all four of said cases so as to properly present for adjudication the matters now in dispute and to be determined by the supreme court, and said matters were adjudicated by the district court. 2. This stipulation contains a fair abstract or statement of the essential questions, of the pleadings, findings and rulings of the court, exceptions, and of the facts in all of said four cases; and this stipulation when signed and approved by the trial judge and filed with the clerk of the district court and then certified to the supreme court, together with a transcript of the final judg
It appears from the case stated that a school district of Dodge county entered into a contract for the erection of a high school building in Fremont. The contractor agreed “to furnish the work and material and to clear and level the grounds.” The contractor entered into a bond with the Lion Bonding & Surety Company as surety, in which the contractor and the bonding company are “held and firmly bound unto the school district of Fremont, in the county of Dodge, in the state of Nebraska, second party, for all liability of the first party for all bills for work, labor and materials to be incurred in connection with the contract.” The suits were prosecuted upon the bond. The plaintiffs asked that attorney’s fees be taxed in their favor, which the court refused. The defendants contend that the court allowed items of recovery which are nor properly allowed in such actions. These are the two questions presented.
The statute in force when the contracts in the cases at' bar were made was enacted in 1889. Laws 1889, ch. 28. The act is entitled “An act to secure the payment of mechanics’ and laborers’ wages on all public buildings where the provisions of the general mechanics’ lien laws do not apply.” It requires the public officers to take from the contractor a bond “conditioned for the payment of all laborers and mechanics for labor that shall be performed in the erecting, furnishing or repairing of the building, or in performing the contract.” When this statute was enacted the general mechanics’ lien law provided: “Any person or subcontractor who shall perform any labor for or furnish any material or machinery or fixtures for any of the purposes mentioned in the first section of this act, to the
In Des Moines Bridge & Iron Works v. Marxen & Rokahr, 87 Neb. 684, it is held that, when the contractor has “agreed to furnish the. material, machinery, appliances and labor necessary for the construction of, and construct, equip and fully build, a courthouse,” and the bond of the surety is conditioned “that if the said Marxen & Rokahr shall well and truly keep and perform all the conditions of this contract on their part to be kept and performed, and shall indemnify and make payment and save the said Seward county harmless as therein stipulated, then this obligation shall be of no effect,” the bond is a common-law contract, and the surety assumes “an obligation to pay the subcontractors and materialmen, as well as the laborers aud mechanics engaged in constructing the courthouse referred to.” That case recognizes a conflict in the authorities, citing some of them, and bases the conclusion upon our own decisions, some of which are also cited with approval, and others distinguished.
The act of 1913 (Laws 1913, ch. 170; Rev. St. 1913, sec. 3840) for the first time extended like security to material-
Plaintiff’s counsel insists that the words “in connection with the contract” must be construed to protect “all parties becoming creditors of the contractor.” Of course, he means creditors “in connection with the contract,” but he does not state any plain rule by which it can be determined with certainty what creditors must be considered as having become such in connection with the contract with the school district. The necessity of such a plain distinction is obvious. If the contractor whose business was to take such contracts from time to time should, while engaged in this particular work, purchase wagons with which to deliver his materials, with the expectation of using them similarly in other work for years afterwards, the bill for such wagons might in some sense, perhaps, be said to be in connection with this contract, but surely not within the contemplation of the parties. What, then, might be reasonably contemplated by the parties from a fair construction of the language used? The surety guarantees that the contractor will pay for all work and labor performed and for all material furnished “in and about said work.” This is the last expression of that matter in the contract, and it is agreed that if this is complied with the bond shall be void. The “work” is the construction of the building
In these cases such lumber to the value of $6,874.65 was used and consumed, except the comparatively insignificant amount of $70. The court allowed for the full value of the lumber so used which had not been paid for, making no reduction for the $70 which was realized by the contractor and was not consumed in the work. This item was so small in comparison with the whole amount of lumber furnished that it may be said that the lumber furnished was practically consumed in the work. And, for the same reason, the court was right in not deducting 10 cents for each cement sack. The case stated shows that cement was furnished in sacks, and that by agreement the contractor was to be allowed 10 cents for each sack returned. There were 279 sacks not returned. There is no presumption that it is practicable to return- all the sacks in which the cement is furnished, and, as this mate
The judgment in the case of the Nye-Schneider-Fowler Company included an item of $44.05 for coal used in running the hoisting engine. This was erroneous, and that judgment will be reversed, unless the plaintiff files in this court a remittitur in that amount within 30 days. If such remittitur is filed, the judgment will he affirmed. A similar item of $12.70 was allowed in the judgment of Hotchkiss et al., and the same order will be entered. In the judgment of Thomas & Courtright Hardware Company was improperly included $26.36 and $17.55 for articles used by the contractor, but Avhich Avere not consumed and did not enter into the structure. The same order, therefore, will be entered as to those items. The judgment of O'rvis Clark was wholly for drayage properly included. That judgment is therefore affirmed, with costs. In the other three cases, the costs in this court will he taxed to the party incurring the same.
Judgment accordingly.